AN OVERVIEW Of STATE POlICIES

Transcription

1 DRUG-FREE ZONE LAWS: AN OVERVIEW Of STATE POlICIES Drug-free zone laws are among the most longstanding sentencing policies in America s War on Drugs. In years before President Ronald Reagan officially used the term War on Drugs Congress passed an early version of a law increasing penalties for certain drug offenses committed near schools. In the 1980s, many state governments began to do the same. Today, all 50 states and the District of Columbia have adopted some form of drug-free school zone law. The premise behind drug-free zone laws was that drug trafficking near schools posed a danger to children. In order to protect children from drug activity, lawmakers established protected zones around the places where children were most likely to be present, including schools and public parks. Individuals caught using or selling drugs within the protected zone faced substantially higher penalties than others who engaged in the same conduct outside the zone. The application of drug-free school zone laws has proved problematic for several reasons: First, in the sentencing schemes of several states defendants may face two distinct penalties for a single offense. Second, the laws are frequently drafted so broadly that they result in enhanced penalties for drug offenses that are a substantial distance from a school, that do not involve school children in the offense, or take place outside of school hours. In Alabama, for example, a drug sale that takes place as much as three miles from a school, college, or public housing project is subject to a mandatory five-year prison term. Third, because protected areas are clustered within urban, high-density population areas, the zones disproportionately affect people of color and economically disadvantaged citizens. 1 In recent years, these problems have led at least seven states, including Connecticut, Delaware, Indiana, Kentucky, Massachusetts, New Jersey, and South Carolina, to reform their drug-free zone laws. This briefing paper provides an overview of these statutes nationally and an assessment of reform activity in recent years. DRUG-FREE ZONES: DIVERSITY AMONG THE STATES Drug-free school zone laws vary by jurisdiction, with the key distinctions being in these areas: zone size, locations covered, offenses covered, and penalties imposed (see Appendix for full description of each state s policies). Some states have also adopted restrictions on when and under what circumstances the enhanced penalties apply. All 50 states and Washington, D.C. (see Appendix) apply some form of enhanced penalties to offenses involving The 1705 DeSales Street NW, 8th Floor Washington, D.C sentencingproject.org 1

2 , sale, distribution, or possession with intent to distribute drugs. In nine states Alaska, Arkansas, Arizona, Connecticut, Indiana, Minnesota, New Mexico, Michigan and Oklahoma defendants in drug-free zones can also face enhanced penalties even for simple drug possession that does not involve sale to school children. In Arkansas, for example, simple possession of two grams of methamphetamine is sufficient to trigger a ten-year with no parole in addition to the imposed for the underlying offense. their policies to areas beyond elementary and secondary schools and onboard school buses. For example, several states have enacted zones around public housing facilities, public parks, churches, and daycare centers. Others, including Missouri and West Virginia, include colleges and universities in their definition of school. Utah adds shopping malls, amusement parks, and the parking lots of such areas to the list of covered areas. Table 1. Drug-Free Zone Sizes by State < 1,000 ft. 1,000 ft. > 1,000 ft. Alaska Arizona a Delaware Hawaii Indiana Massachusetts Minnesota Rhode Island Vermont Wyoming Alabama Arkansas California Colorado Connecticut Florida Georgia Idaho Illinois Iowa Kansas Kentucky Louisiana Maine Maryland Michigan Mississippi Missouri Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania South Carolina South Dakota Tennessee Texas Utah Virginia Washington Washington, D.C. West Virginia Alabama Connecticut Louisiana Mississippi Missouri Oklahoma South Carolina a Arizona s drug-free zones apply 300 feet from school property on private property and 1,000 feet from school property on public property. As seen in Table 1, 32 states and the District of Columbia establish a zone area that extends 1,000 feet in all directions from the property line of schools and other protected areas. Thus, in most states a drug sale that takes place at a distance of more than three football fields away from a school building can result in enhanced prison time. Ten states have drawn zones more tightly so as to avoid overreaching in their impact, while seven others have cast a much wider net of 1,500 feet or more. Though the stated intent of drug-free zone laws was to protect schools, 31 states have extended the scope of 31 states have extended the scope of their policies to areas beyond elementary and secondary schools. The most expansive law in terms of covered locations is that of Arkansas, which draws zones around schools, public parks, public housing facilities, day care centers, colleges and universities, recreation centers, skating rinks, Boys and Girls Clubs, substance abuse treatment facilities, and churches. PENAlTIES Drug-free zone laws apply enhanced penalties in two different ways among the states. In thirty states, the law designates drug offenses within the protected zone as distinct crimes with their own penalties or penalty ranges. In Colorado, for example, sale of a controlled substance within a drug-free zone is a distinct criminal offense that carries an eight-year mandatory minimum. In other states, the law prescribes enhanced penalties for underlying crimes when they occur within the protected zone. In Arizona, for instance, committing The 1705 DeSales Street NW, 8th Floor Washington, D.C sentencingproject.org 2

3 a covered offense within a drug-free zone increases the presumptive minimum and maximum penalties for the underlying offense by one year. States also vary in the severity of the penalties drug offenders receive for violating drug-free school zone laws. In 13 states, violation of the law triggers a mandatory minimum or enhancement that ranges from one year in Virginia to eight years in Colorado. In Washington, DC, Rhode Island, and the state of Washington, the drug-free zone violation doubles the maximum penalty for the underlying offense. Kansas, Nebraska, and Tennessee elevate the felony class of the underlying drug offense when it is committed within a drug-free zone, thereby exposing the defendant to harsher penalties. Similarly, Delaware and Nevada treat violation of the drug-free zone as an aggravating factor in the sentencing proceeding for the underlying drug offense. Finally, some states allow juvenile defendants to be prosecuted for a drug-free zone offense in adult court and to be d to an adult institution for violations of drug-free zone laws. LIMITATIONS ON DRUG-FREE ZONES A number of states have imposed various restrictions on their drug-free zone laws with the intention of narrowing their focus to more closely align with the original purpose of the law. Lawmakers have limited the application of the zone laws based on the nature of the transaction, the age of the defendant, the time of day, the presence of children, and whether the offense takes place on public or private property. Seven states Alaska, Georgia, Louisiana, Montana, New Jersey, Texas, and Washington apply an exception to their drug-free zone laws if the offense occurs within a private residence so long as no children are present and the defendant did not profit from the offense. Virginia similarly applies its law only on public property. California, Nebraska, and West Virginia exempt juvenile defendants from enhanced penalties, as does New Mexico for possession offenses. Florida, Massachusetts, and Nevada impose some form of time restrictions on their laws so that they only apply when children are present. New York and South Carolina require that defendants know they are in the zone when they commit the offense, while North Carolina and North Dakota exempt small quantities of marijuana from their zone laws. Indiana is unique in that it creates affirmative defenses to its zone law: defendants may avoid the enhanced penalties of the law if they were only briefly in the zone while no minors were present or if they were in the zone solely because law enforcement officers stopped them there DRUG-FREE ZONE LAWS: REfORMS While courts have been reluctant to grant Constitutional challenges to drug-free zone laws, concerns over the laws have led a number of state legislatures to reform their drug-free zone policies. By 2005, lawmakers in Massachusetts, New Jersey, and Connecticut had commissioned studies to survey the impact and effectiveness of drug-free zone laws in their respective states, and identified problems regarding the scope of their respective zones and resulting racial disparities. 2 Several states have since enacted policy reforms including Massachusetts, New Jersey, Connecticut, and Indiana. Delaware, Kentucky and South Carolina also reformed their drug-free zone laws as part of larger drug law reform bills. But other states, including Arkansas, Hawaii, and Texas, have adopted harsher penalties by expanding locations to include public housing and playgrounds where selling drugs can trigger enhanced penalties. 3 CONNECTICUT Connecticut s harsh drug-free zone law was enacted in In 2001, Connecticut legislators changed state law to grant judges discretion in applying the school zone penalty in certain drug offenses based on good cause. 4 Yet the Connecticut statute imposing a three-year mandatory minimum for committing a drug offense within 1,500 feet of a school, public housing complex, or daycare center remains in effect. However, further reforms may soon be enacted. In the 2013 legislative session, Connecticut s Black and Puerto Rican Caucus sponsored a bill that would have reduced the size of the state s drug-free zones from 1,500 feet to 300 feet. The bill was debated in the Connecticut House The 1705 DeSales Street NW, 8th Floor Washington, D.C sentencingproject.org 3

4 of Representatives but Republican opponents succeeded in filibustering the bill and its time expired without a vote. As a result, the bill stalled and will not become law for Nevertheless proponents of the bill have vowed to introduce it again in the next legislative session. DElAWARE Delaware s drug-free zone law was first adopted in 1989 and created 1,000-foot zones around schools and 300-foot zones around parks. Commission of a drug offense including simple possession within the zone constituted a distinct felony offense. In 2011, as part of a general effort to reduce excessive penalties for drug users and lower level sellers, the General Assembly passed and Governor Jack Markell signed a bill that substantially reformed the state s drug laws. The 2011 law shrunk Delaware s drug-free zones from 1,000 feet to 300 feet. It also created three categories of drug offenses simple possession, aggravated possession, and drug dealing with the for each offense depending on the type and quantity of drug involved and the presence or absence of aggravating circumstances. The law makes commission of the underlying offense within a drug-free zone an aggravating factor for the purposes of sentencing. INdIANA Indiana s original drug-free zone law, passed in 1987, raised the felony class of the underlying drug offense from Class B to Class A if the offense occurred within 1,000 feet of school property, a public park, a public housing complex, or a youth program center. Under state law, the penalties imposed for committing a Class A felony are substantially harsher than those imposed for a Class B felony: a Class A felony exposes a defendant to a of 20 to 50 years in prison with an advisory of 30 years, while a Class B felony exposes a defendant to a of 6 to 20 years in prison with an advisory of 10 years. In 2007, two bills were introduced one in each house of the legislature that would have expanded drug-free zones to churches and marked bus stops, respectively. In response to the 2007 bills, Kelsey Kauffman, formerly of DePauw University, and her students began studying the impact and effectiveness of the state law. Their findings were similar to those in Massachusetts and Connecticut: drug-free zones blanketed large portions of inner city areas in Indianapolis and more than 75% of defendants who had their felony class raised under the drug-free zone statute were black. 5 Professor Kauffman and her students presented their findings before the Indiana Senate Committee on Corrections, Criminal, and Civil Matters in 2007 and 2008 and again before the specially-convened Indiana Policy Study Committee in October Their testimony contributed to the defeat of the bills in the legislature. In a drug-free zone case in February 2012, the Indiana Supreme Court reduced the 20-year of a Kokomo man convicted of possessing small amounts of marijuana and cocaine within a drug-free zone. 6 Because the man would have faced a maximum prison of only 18 months if his offense had occurred outside the zone, the court found that the 20-year was grossly disproportionate to the severity of the crime. Furthermore, the court signaled that it would continue to reduce harsh s imposed under the drug-free zone law when it reduced a similar in June In response, to address the concerns of the Indiana Supreme Court as well as the issues documented in the DePauw University study, the legislature passed and Governor Mike Pence signed a bill that substantially reformed the state s law. The bill reduced Indiana s zones from 1,000 feet to 500 feet and eliminated the zones around public housing complexes and youth program centers. It also added the requirement that a minor must be reasonably expected to be present when the underlying drug offense occurs. Lastly, the measure made violation of the drug-free zone law an enhancing circumstance of the underlying drug offense, the severity of which is dependent upon the type and quantity of the drug involved. Because the law also restructures Indiana s felony classification structure and penalties, a defendant d under the revised law now faces a mandatory minimum penalty of one year rather than twenty years. The 1705 DeSales Street NW, 8th Floor Washington, D.C sentencingproject.org 4

5 KENTUCkY Lawmakers modified the state s drug free zone in The provision was included in a larger package of sentencing reforms that were adopted to address the state s growing prison population. State lawmakers shrunk the drug free zone from 1,000 yards to 1,000 feet. Anecdotal reports suggest that the original zone was a mistake given that most states impose a zone measured in feet rather than yards. The change in policy was adopted without opposition MASSACHUSETTS In 1989, the General Assembly of Massachusetts passed the state s first drug-free zone law, which imposed a 2-15-year mandatory minimum for convictions of selling or distributing drugs within 1,000 feet of a school. A 1993 amendment drew a 100-foot zone around parks, and a 1998 amendment added a 1,000-foot zone around day care and Head Start facilities. 8 Efforts to reform the law began in 2000, when Dorchester District Court Judge Sydney Hanlon noticed that a majority of drug-free zone defendants in her courtroom were black or Hispanic and requested that Northeastern University researchers conduct an analysis on the racial impact of the law. The researchers documented that 80% of the defendants who received enhanced s under the drug-free zone law were black or Hispanic even though 45% of those arrested for drug violations statewide were white. The next layer of drug-free zone research was conducted by William Brownsberger at the Boston University School of Public Health. In his analysis of 443 drug sale cases in Fall River, New Bedford, and Springfield, Massachusetts, Brownsberger found that school zones covered 29% of the three studied cities and 56% of high-poverty areas. 9 These findings led Brownsberger to recommend that the Massachusetts zone be shrunk from 1,000 feet to feet. These findings were bolstered by a 2009 report issued by the Prison Policy Initiative (PPI). PPI s research, which focused on Hampden County in western Massachusetts, revealed that residents of urban areas were five times as likely to live within a drug-free zone as residents of rural areas. 10 The data further showed that more than half of black and Hispanic residents lived in drugfree zones while less than a third of white residents did so. PPI also found that the addition of Head Start facilities to the law in 1998 disproportionately impacted poor neighborhoods since such facilities service poor neighborhoods and are therefore more likely to be located there. As a result of the issues surrounding the state s drug-free school zone law, legislators serving on Massachusetts s joint Judiciary Committee approved a bill that would have shrunk the size of the zones and limited the hours of their effectiveness, but it died on the floor of the General Assembly. In the summer of 2012, however, with the endorsement of Governor Deval Patrick, the General Assembly passed a bill that reduced the size of Massachusetts s zones from 1,000 feet to 300 feet and limited the hours of the zones operation from 5 a.m.- midnight. NEW JERSEY New Jersey first enacted its drug-free zone law as part of sweeping drug legislation in The original law drew a 1,000-foot zone around schools; distributing, dispensing, or possessing with intent to distribute drugs within that zone was classified as a third-degree felony with a three-year mandatory minimum prison. In 1998, New Jersey lawmakers added a 500-foot zone for drug sales around public housing parks, libraries, and museums. Violation of the 1998 law constituted a second-degree offense, for which a prison term is the presumptive. Furthermore, New Jersey courts have interpreted the word school in the statute to be broad, including daycare centers, vocational training centers, and other educational facilities. Advocacy organizations including the Drug Policy Alliance and Families Against Mandatory Minimums prioritized reform of the state s drug-free school zone laws. This was instrumental in the legislature s decision to convene the New Jersey Commission to Review Criminal in The Commission found that that enforcement of the drug-free-zone laws had a devastating impact on minority defendants because New Jersey s densely populated urban areas were transformed into massive drug-free zones. Nearly every defendant (96%) convicted and incarcerated for a drug-free zone The 1705 DeSales Street NW, 8th Floor Washington, D.C sentencingproject.org 5

6 offense in New Jersey was either black or Latino. 11 The Commission recommended that the legislature shrink the size of the zones from 1,000 to 200 feet and eliminate the mandatory minimum for school zone violations. The commission s bill passed in committee in 2005 but stalled in the legislature later that year. Five years later, Governor Jon Corzine signed into law a bill that did not alter the 1,000-foot zone size, but eliminated the mandatory minimum prison for school zone offenses and enhanced judicial discretion in such cases. SOUTH CAROlINA South Carolina maintains an expansive zone of more than 2,600 feet, or a half mile, around restricted areas. However, lawmakers modified the triggers for penalty enhancements in restricted areas when a comprehensive package of sentencing reforms that garnered bipartisan support was adopted in The modification requires that anyone arrested for a drug offense in an enhancement zone must have knowledge that he or she was in a restricted area with the intent of selling. CONClUSION Drug-free zone laws were initially promoted as an attempt to keep dangerous drug activity away from children. In practice, drug-free zone laws have created a number of serious issues within the criminal justice system, by frequently imposing excessive penalties and by subjecting urban poor and minority populations to harsher penalties than others for similar drug offenses. Spurred by more than a decade of research, a number of states are taking measures to reform their drug-free zone laws to alleviate the burdens they impose on poor people and people of color with no benefit to public safety. These states should serve as a model for other jurisdictions as the movement for fairer, more effective drug laws continues to build momentum in the United States. ENdNOTES 1 Judith Greene, Kevin Pranis, and Jason Ziedenberg, Disparity by Design: How drug-free zone laws impact racial disparity and fail to protect youth (2006), available at dp-jj-rd.pdf 2 Greene et al., Disparity by Design: How drug free zone laws impact racial disparity and fail to protect youth. 3 Lawrence, Allison Trends in and Corrections: State Corrections National Conference of State Legislatures. Denver, CO. July 2013, available at 4 Staff, Mandatory Minimums Report, Legislative Program Review & Investigations Committee. Hartford, CT. December 2005, available at: 5 Kelsey Kauffman et al., Testimony before the Policy Study Committee (2008), available at edu/$1~kkauffman/newdrugzonelaws/testimony.html. 6 Abbot v. State, 961 N.E.2d 1016 (Ind. 2012). 7 Walker v. State, 968 N.E.2d 1292 (Ind. 2012) (per curiam). 8 Prison Policy Initiative, The Geography of Punishment: How Huge Enhancement Zones Harm Communities & Fail to Protect Small Children (2009), available at 9 William Brownsberger, An Empirical Study of the School Zone Law in Three Cities in Massachusetts (2001). 10 Prison Policy Initiative, The Geography of Punishment: How Huge Enhancement Zones Harm Communities & Fail to Protect Small Children (2009), available at 11 Staff, Supplemental Report on New Jersey s Drug Free Zone Crimes & Proposal for Reform, The New Jersey Commission to Review Criminal. (April 2007), available at pdf. The 1705 DeSales Street NW, 8th Floor Washington, D.C sentencingproject.org 6

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